SEPARATE OPINION
CANTORAL-HUAMANÍ AND GARCÍA-SANTA CRUZ v. PERU
I have cast my vote to approve, unanimously, this Judgment in Cantoral-Huamaní
and García-Santa Cruz v. Perú, but I feel it necessary to clarify my position on an issue that
has been considered during the deliberation of this case and in various cases before the
Court over the last three years.
This is the interpretation and application of Articles 8(1) and 25 of the Convention in
relation to Article 1(1) and, hence, the nature and purpose of these provisions.
Chapter I of the American Convention (General Obligations) refers to the obligations
of the States Parties under this instrument: Article 1 (Obligation to Respect Rights) and
Article 2 (Domestic Legal Effects). These are provisions of a general nature that permeate
all the rights protected in Chapter II (Civil and Political Rights). The latter are protected
rights have their own ontological nature, they protect inherent juridical rights, which may be
violated by the State Party as a result of certain acts that also entail the violation of Article
1(1) and, if applicable, Article 2, which, as I have indicated, are general provisions. This is
not the nature of Articles 8 and 25, which also have a specific ontological content, but not
as provisions of the Convention with general application and, consequently, they can be
violated by the State, together with other rights, always in relation to Article 1(1), which
establishes the general obligation of the States Parties to respect and ensure the rights
included in Chapter II of the Convention. 1
Article 1(1) of the Convention establishes that:
1. The States Parties to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those
rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status, birth, or any other social
condition.
Article 8(1) indicates textually that:
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation
of any accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.
While Article 25 states that:
1.
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights recognized
by the constitution or laws of the state concerned or by this Convention, even though such violation
may have been committed by persons acting in the course of their official duties.
2.
The States Parties undertake:
a)
to ensure that any person claiming such remedy shall have his rights determined by the
competent authority provided for by the legal system of the state;
1
Cf. IACHR, Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71; IACHR, Case
of Cantos v. Argentina. Judgment of November 28, 2002. Series C No. 97; ICHR, Case of Almonacid-Arellano et al.
v. Chile. Judgment of September 26, 2006. Series C No. 154; ICHR, Case of the Dismissed Congressional
Employees (Aguado-Alfaro et al.) v. Peru. Judgment of November 24, 2006. Series C No. 158.